Background: On June 15, 2007, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) issued
EEOICPA Bulletin 07-21, NIOSH’s Program Evaluation Report for Lymphoma.
EEOICPA Bulletin 07-21 provided guidance on processing cases that were
identified by NIOSH as potentially affected by the release of OCAS-PER-009,
Target Organs for Lymphoma.

This
Bulletin provides guidance for those cases identified by DEEOIC as being
potentially affected by the release of OCAS-PER-009, in which a “Claim Review
in Support of Program Evaluation Report (PER)” was not received and the case
contains a final decision to deny based on a lymphoma diagnosis and a POC of
less than 50%.

Purpose: To provide procedures for
processing claims identified by DEEOIC that do not have an individual PER.

Applicability: All staff.

Actions:

1. In
OCAS-PER-009 (Attachment 1), NIOSH determined that a change is
required for internal and external dosimetry target organs used for dose
reconstruction for lymphoma cases that were performed prior to February 10,
2006, and deemed non-compensable on the basis of a less than 50% Probability of
Causation (POC). NIOSH found that the change in the target organ used for dose
reconstructions increases the organ dose, thereby resulting in a higher POC. As
such, certain lymphoma cases containing a final decision to deny based on a POC
of less than 50% need to be reopened and returned to NIOSH for a new dose
reconstruction.

All
lymphoma dose reconstructions completed after February 10, 2006, use the correct target organ selection. The completion date of the dose reconstruction is
determined by the “Calculations
Performed by” date found on the NIOSH Report of Dose Reconstruction under the
Energy Employees Occupational Illness Compensation Program Act. No action is required for a
final decision to deny a cancer for a less than 50% POC, if the applicable dose
reconstruction has a “Calculations Performed by” date after February 10, 2006.

2. Both
NIOSH and DEEOIC
produced separate lists identifying all lymphoma cases that are potentially
affected by OCAS-PER-009. The NIOSH and DEEOIC lists were compared by National
Office to ensure that all potential lymphoma cases with a dose reconstruction
performed prior to February 10, 2006, that resulted in a less than 50% POC were
identified. The NIOSH list of cases was provided to the appropriate district
offices on June 15, 2007, with instructions on retrieving a copy of NIOSH’s “Claim
Review in Support of Program Evaluation Report” for each corresponding case
file from the DEEOIC Shared Drive.

The
DEEOIC list of cases (cases that were not on the list provided by NIOSH and are
the subject of this directive) will be distributed to the appropriate district
offices under separate cover. A “Claim Review in Support of Program Evaluation
Report” is not available for these cases. As such, it is necessary for these
cases to be reviewed for possible reopening and return to NIOSH for a new dose
reconstruction.

3. In
the exercise of the Director’s discretion over the reopening process, the
Director is delegating limited authority to the District Director to sign
Director’s Orders for reopening. This delegated authority is limited to
reopenings for those cases that are potentially affected by the PER established
for lymphoma dose reconstructions. The Director is retaining sole signature
authority for all other types of reopenings not otherwise delegated.

4. For
all lymphoma cases on the DEEOIC list, with a confirmed diagnosis of lymphoma
(ICD-9 200-208.91), the responsible Claims Examiner (CE) must review the
NIOSH Report of Dose Reconstruction under the Energy Employees Occupational
Illness Compensation. If the “Calculations Performed by” date is on or
before February 10, 2006, and the POC is less than 50%, the responsible
District Director should issue a Director’s Order vacating the final decision
and reopening the claim. The Director’s Order should state that the case is
being reopened as a result of the change in scientific methodology by which the
dose reconstruction for lymphoma is performed, and that a rework of the dose
reconstruction is necessary based on guidance provided in OCAS-PER-009. A
sample Director’s Order is included as Attachment 2. The
District Director should code the case as “MN” (NO Initiates Review for
Reopening) with a status effective date as the effective date of this
bulletin.

Upon
completing the Director’s Order to reopen the claim, the District Director
should code the case as “MD” (Claim Reopened – File Returned to DO) to reflect
that the case has been reopened and is in the district office’s jurisdiction. (The
“MZ” status code is not necessary).

The
status effective date of the “MD” code is the date of the Director’s Order.

Please
note that while the “MD” code is generally input by National Office staff, entry
of this code has been delegated to the District Director, just as the authority
to grant reopenings has been in this specific circumstance.

5. Once
the claim has been reopened, the responsible CE refers the case to NIOSH for a
rework of the dose reconstruction. For cases affected by this bulletin, a
rework request to the National Office Health Physicist is not required. Instead,
the CE should complete an amended NIOSH Referral Summary Document (ANRSD) and forward
the ANRSD to the Public Health Advisor (PHA) assigned to the district office at
NIOSH. The ANRSD should include the following statement in the “DOL
Information” section, “Rework request due to OCAS-PER-009 and any other
applicable modifications.” The CE should also:

a.Send a letter to the
claimant explaining that the case has been returned to NIOSH for a rework of
the dose reconstruction as a result of a change in the dose reconstruction
methodology as outlined in OCAS-PER-009. A sample letter to the claimant is
included as Attachment 3.

b.Send a copy of this letter
to the PHA at NIOSH assigned to the DO along with the weekly DO submissions to
NIOSH. The dates on the ANRSD and the letter to the claimant must both be the
same, since this will be the date used for the status code entry into ECMS. The
CE should code the case as “NI” (Sent to NIOSH) and select the “PEP” (Rework
based on Program Evaluation Plan) reason code. (Since this is considered a new
dose reconstruction, the CE should not change the existing NR/DR status code to
NR/RW as typically done for rework cases. In addition, the existing POC should
not be deleted from ECMS.)

6. Upon receipt of the new dose reconstruction report that
incorporates NIOSH’s findings from OCAS-PER-009, the CE proceeds in the usual
manner and prepares a recommended decision. The CE should code the case as
“NR” (Received from NIOSH) and select the “DR” (Dose Reconstruction
Received-POC) reason code. The status effective date will be the date the dose
reconstruction is date-stamped into the District Office. The POC should be updated
in ECMS based on the new dose reconstruction.

7. It is possible that during the course of the review of
these cases, NIOSH may supply the National Office with an individual Program
Evaluation Report (PER) or Individual Case Evaluation (ICE) form for each case
(or a PER that represents a population of cases) potentially affected by the
PER. The individual PER or ICE will serve as documentation that the case file
has been reviewed by NIOSH and that NIOSH has determined that:

·the change to the scientific methodology outlined in the PER
affects the outcome of the claim and a new dose reconstruction is required, or

·the change to the scientific methodology outlined in the
PEP/other modifications, does not affect the outcome of the claim and a new
dose reconstruction is not required.

If an individual PEP/ICE is received indicating that a new
dose reconstruction is required, the case should be reopened/referred to NIOSH (if
not already at NIOSH) for a new dose reconstruction following procedures as
outlined in this bulletin.

If an individual PEP/ICE is received indicating that a new
dose reconstruction is not required, but lymphoma is the diagnosed
condition and the dose reconstruction was performed prior to February 10, 2006,
the CE is to send a copy of the individual PEP/ICE along with a letter to the
claimant(s) advising them of the change in the dose reconstruction model. The
letter states that while a change has occurred in the target organ used to
conduct the dose reconstruction in the claim, NIOSH has determined it does not
change the outcome of the case. However, the claimant may still request a
reopening of the claim for a rework of the radiation dose reconstruction. A
sample letter to the claimant(s) is included as Attachment 4.

NOTE: A PER/ICE cannot be used in lieu of a dose
reconstruction after a reopening is issued. A new dose reconstruction must be
received and the new POC must be entered in ECMS.

If an individual PER or ICE is received in the National
Office, it will be forwarded to the appropriate district office for inclusion
in the case file.

8. If a claimant requests a reopening of his/her claim as
a result of the PER for lymphoma, regardless of whether the case is identified
by NIOSH or DEEOIC, the case file must be evaluated to determine whether or not
the claim warrants a reopening (unless DEEOIC sent a letter to the claimant as
instructed under Action Item #7). Simply identifying OCAS-PER-009 is not
considered new evidence and is not sufficient to warrant a reopening. A
reopening should be granted only if the evidence of file supports a diagnosis
of lymphoma and the dose reconstruction was performed prior to February 10, 2006 and resulted in a less than 50% POC. If these requirements are met, the
District Director should issue a Director’s Order reopening the claim following
the procedures as outlined in this Bulletin.

Upon receipt of the claimant’s requests for reopening, the
District Director should code the case as “MC” (Claimant Requests Reopening). The
status effective date is the postmark date,
if available, or the date the request is received in the DO or FAB, whichever
is earlier.

For all claimant requests for reopening that do not meet
the criteria for reopening, the District Director should prepare a memorandum
to the Director of DEEOIC and forward the case file to National Office for
review.

9. A
period of 120 calendar days, effective with receipt of the case listing that
will be sent under separate cover, is granted for case files affected by
this PER for the district office to issue a Director’s Order reopening the cases
and returning the case file to NIOSH for a new dose reconstruction.

Disposition: Retain until incorporated
in the Federal (EEOICPA) Procedure Manual.